The New South Wales Industrial Relations Commission has varied the General Carriers Contract Determination to expand the Determination's coverage and impose new obligations on owner drivers and the principal contractors that engage them. The new obligations bear some similarity to those imposed under the now repealed Federal Road Safety Remuneration Orders and are likely to affect transport operators who engage owner drivers to provide transport services in New South Wales.
As the result of an application by the Transport Workers' Union (TWU), the New South Wales Industrial Relations Commission has varied the General Carriers Contract Determination. The varied Determination has expanded coverage of owner driver contracts and will commence operation on 2 July 2016.
Who is now caught by the Determination?
Before its variation, the Determination only applied to certain Sydney based and local delivery owner drivers. The Determination now applies to 'contracts of carriage' generally, as defined under Chapter 6 of the Industrial Relations Act 1996 (NSW).
A 'contract of carriage' is an agreement for the transportation of goods in circumstances where, if the carrier is a:
- sole trader – no person other than the carrier is employed in driving the vehicle in the course of that business;
- partnership – no person other than a partner is employed in driving the vehicle in the course of that business; or
- company – no person is employed in driving the vehicle in the course of that business other than:
- a director of the company or family member of a director;
- a person who, together with members of their family, has a controlling interest in the company; or
- a member of the family of a person, who together with the members of his or her family, has a controlling interest the company.
Some contracts of carriage are excluded, such as contracts for packaged goods by multiple hirers or the carriage of livestock, or using certain specialised vehicles such as tankers and floats.
What are the new obligations imposed by the Determination?
The Determination imposes a number of new obligations on owner drivers and principal contractors.
Some of the new obligations imposed on principal contractors include obligations to:
- provide a copy of the Determination to relevant owner drivers and display the Determination in the workplace;
- provide a copy of the applicable rates schedule to relevant owner drivers prior to the provision of transport services, and whenever there is a change to the rates;
- ensure rostering and allocation of work is transparent, reasonable and lawful;
- keep records in relation to rates schedules, start and finish times, hours worked per day, kilometres travelled per day, start and finish places, remuneration paid, written contracts, schedules and rosters, safe driving plans, and breaches or potential breaches of fatigue management laws; and
- consult with owner drivers about any decision to change a fleet mix that is likely to have significant effects on the owner drivers.
As a result of the amendments, undisputed tax invoices rendered by owner drivers covered by the Determination must be paid within 30 days of receipt.
Who is required to pay minimum rates under the Determination?
The obligation to pay minimum rates under the Determination has not yet been expanded. Even if a principal contractor's arrangements with an owner driver satisfy the definition of 'contract of carriage', the principal contractor will still only have to pay the minimum rates of remuneration set out in the Determination where:
- the contract is for the transportation of goods from one place to another place:
- both of which are within the County of Cumberland (which covers most of metropolitan Sydney); or
- where the second place is no more than 50 kilometres from the first place; and
- the goods do not fall within an excluded category of goods (such as goods requiring refrigeration in a refrigerated vehicle).
However, the TWU has applied to extend the coverage of the minimum rates so that they will apply to any contract that meets the definition of 'contract of carriage' as set out above. The Commission will consider this application later this year.
What must you do now?
Parties caught by the Determination must:
- establish which of their contracts with transport providers fall within the scope of the Determination;
- review any contracts to ensure they comply with the Determination;
- become familiar with their new obligations under the Determination and ensure their work systems, policies and procedures are consistent with the Determination; and
- in the case of principal contractors, supply copies of the Determination to relevant owner drivers and display the Determination at workplaces.
The terms of the Determination are lengthy and complex. A more comprehensive bulletin discussing the terms of the Determination is available here.
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